Utah attorney general appeals order to release special election opinion

Utah Attorney General Sean Reyes reports the results of an joint effort to fight the drug epidemic during a press conference at the Capitol in Salt Lake City on Friday, June 30, 2017. The Utah Attorney General's Office is challenging a State Records Committee order to release a legal opinion sought by legislative leaders on the special election to fill the 3rd Congressional District vacancy.

SALT LAKE CITY — The Utah Attorney General's Office is challenging a State Records Committee order to release a legal opinion sought by legislative leaders on the special election to fill the 3rd Congressional District vacancy.

The appeal of the order issued in October was filed Tuesday in 3rd District Court.

The opinion is part of an ongoing dispute between lawmakers and Gov. Gary Herbert over the governor's decision not to call the Legislature into special session to set up the process to fill the remainder of former Rep. Jason Chaffetz's term.

Legislative leaders contend the governor exceeded his authority and asked Attorney General Sean Reyes for an opinion. But the governor's office had also sought legal help from Reyes about the election, raising concerns about a conflict of interest.

So the attorney general's office withheld what it called a draft opinion, seen "(o)nly by a handful of employees" who have been screened from others in the office and forbidden to disclose the opinion's contents, according to the appeal.

A Salt Lake Tribune reporter, Lee Davidson, had appealed the attorney general's office denying his request for the opinion to the State Records Committee. The attorney general's appeal of the committee's decision says the order was improper.

The court filing states the chairwoman of the records committee, Holly Richardson, is a columnist for the Tribune and her financial relationship with the newspaper "in whose favor she ruled imbues the decision with the appearance of bias."

The filing states the interest in preserving the attorney general's "constitutionally and statutorily mandated ability to provide unfettered legal advice" to the governor and the lieutenant governor "outweighs the public interest" in the opinion.

Reyes had no comment on the filing.

The governor's deputy chief of staff, Paul Edwards, said the filing helps clarify the complexity of "a very significant legal and constitutional conundrum" about the attorney general representing the executive branch and the Legislature.

He said there's still a possibility that issue "could be going to a court of competent jurisdiction" to resolve.

"We genuinely don't care what is in the draft memorandum," Edwards said. "What really matters is what's said in a court of law."

House Speaker Greg Hughes, R-Draper, who held a rare bipartisan House caucus earlier this year to detail concerns about the situation, said he was "frustrated and confused as to why (Reyes) continues to block the release of this opinion."

Hughes referred to an op-ed written by Reyes for the Deseret News that said, "When the credible threat of litigation has passed and our ability to defend our client is not compromised, releasing the opinion would be appropriate."

"I believe that time has passed. More importantly, I believe his ultimate responsiblity is to the people of Utah, not the governor," the speaker said.

"On a conference call in May, he and his staff specifically told us that it was completed, signed and sealed and would remain unchanged. I look forward to the day that the attorney general complies with his statutory duties and provides us this requested opinion," Hughes said.

Voters in the 3rd District, which includes portions of Salt Lake and Utah counties as well as Carbon, Emery, Grand, San Juan and Wasatch counties, chose Rep. John Curtis, R-Utah, in the election held earlier this month.

The decision by Chaffetz, now a Fox News contributor, to step down before the end of his term created the first congressional vacancy in the state since a Utah congressman died in office in 1929.